DISSENTING OPINION I am unable to agree with the opinion in this case. My dissent is based upon the following reasons:
Of course, only the competent evidence most favorable to the award, including reasonable inferences that may be drawn therefrom, may be considered by this court in determining its correctness. I shall not attempt to weigh competent conflicting evidence, since that is wholly for the trial court, in this case, the Industrial *Page 688 Board. This rule of law is too well known to require the citation of authorities. But if the competent evidence is of such a conclusive character as to compel a conclusion contrary to that reached by the Industrial Board, then it is the duty of the Appellate Court on appeal to reverse the award because of the insufficiency of the evidence to sustain it, and because it is contrary to law. Witte v. J. Winkler Sons, Inc. (1934),98 Ind. App. 466, 477, 190 N.E. 72; Cunya v. Vance (1935),100 Ind. App. 687, 691, 692, 693, 197 N.E. 737; Staley v.Indianapolis Coal Co. (1935), 101 Ind. 335, 338, 339,197 N.E. 713.
We are, therefore, required to examine the evidence for the purpose only of ascertaining if there is competent evidence upon which to base the finding and award.
The evidence is quite conclusive that appellant was injured while at work in defendant's mine on December 7, 1944. Appellant testified that he and a fellow-workman, Melvin Adams, picked up a steel bar about 12 feet long that would weigh about 320 pounds, and had to take two or three steps with it, and the pain struck him in the back about the belt line and shot up between the shoulders to the back of his neck. He could lift it no higher and his "buddy" had to lift it on the jack. He reported his injury to the room boss about a half or three-quarters of an hour later. He went to see Dr. Dukes the following Sunday, and went to see him again when the superintendent gave him a slip to go. Later the superintendent asked him what Dr. Dukes did for his back, and said: "He isn't giving you no medical attention. I will send you to another doctor." He sent him to Dr. Harry Crowder, who saw appellant three or four times and treated him "with salve like Dr. Dukes did", and then sent him to Dr. Topping at *Page 689 Terre Haute. Dr. Topping sent him to a Dr. Ney, who told him "not to come back, he did not know what was the matter with me." Dr. Ney was an urologist and was not a witness in the case.
Melvin Adams, appellant's fellow-workman, corroborated appellant fully with respect to his injury, and there is no evidence to the contrary whatever.
Appellant's medical evidence is fairly summarized in the majority opinion. I desire to add, that Dr. Hahn's evidence contains this statement: "On examination of the spine I found tenderness on deep pressure immediately to the right of the lumbosacral joint. Abrupt pressure at that point produced pain which the patient stated radiated into his right upper thigh." Dr. LaBier on his examination of appellant's spine discovered the same tender spot. These two are the only doctors who ever examined the patient's back and, of course, are the only ones to find the point of injury. I call attention to these additional facts that there may be no doubt that appellant made a strongprima facie case.
If there is any competent evidence to support the finding of the Board it must be found in the evidence of Dr. Dukes, Dr. Crowder, or Dr. Topping.
Dr. Dukes testified that when appellant first came to him on December 10, 1944, "he complained of pain in the left side, bleeding from the bowel, and he contended at that time he received an injury while working at the Peabody Coal Company." Answering a further inquiry this doctor said: "Well it seems to me he was struck on the back." So, from his own evidence, it seems clear to me that the doctor cannot be truthful when he said "that the history of the accident and the pain complained of were not such as to call for an examination of the plaintiff's back and that the doctor would have made an examination of the plaintiff's back *Page 690 had the appellant, by his statements, given him any grounds for such examination;" as stated in the opinion. Surely if the patient came to the doctor to be treated for injuries received when he was struck on the back at the coal mine, the desirability of an examination of the injured back must have occurred to the doctor. There is no factual basis in the record for the statement attributed to Dr. Dukes in the opinion that "appellant did not give him the same history of the accident when he came to him for treatment that he gave to the witness, Dr. Hahn in June, 1946." But if there were a basis for such a statement, such a discrepancy would afford no foundation whatever for holding that there was no such injury sustained by appellant, both doctors having received substantially the same history of the injury — an injury to his back about the belt line.
Dr. Harvey Crowder testified when asked "Doctor, at the time this man came to you did you have a history at that time of him having sustained an injury on the 7th of December, 1944? A. Yes, he told me while timbering, putting up a steel bar with another employee that he hurt his back and rectum."
After this information the doctor took an x-ray film of the lumbar vertebrae, pelvis and bones in that region which he interpreted as negative. The doctor said that the ordinary x-ray would not necessarily reveal an injured or ruptured intervertebral disc. Aside from this film, the only examination given the patient was an examination of the rectum for hemorrhoids, and further for possible prostate trouble. He made no examination of the back at all. His excuse for failing to make this obviously essential examination is, that the patient told him that his back hurt him for awhile, but that at the time of the examination the pain was at or about the rectum. I am unable to believe that a doctor acting in *Page 691 good faith, by a simple statement of symptoms like this by an injured workman, would permit himself to be diverted from a physical examination which was being made to determine the fact of an injury to the back and the nature thereof, and cause him to examine only the rectum and stress the symptoms without even examining the cause. From the examination given by this doctor as above condensed and as more fully detailed by the record it would have been rather miraculous if he could have found anything wrong with appellant's back, and especially if he could have found anything as hidden and elusive as a ruptured intervertebral disc. Manifestly the opinion of Dr. Crowder based solely upon the film he took and upon his own examination of the patient's rectum, without any examination of his allegedly injured back, was wholly without probative value in the case.
Dr. M.C. Topping testified that he examined appellant February 10, 1945, and that he then got a history of an accident to him on December 7, 1944. He said the patient told him: "My back hurt me for awhile, now its just my rectum." The doctor based his opinion that the patient did not have a ruptured intervertebral disc, wholly because, to use his own language: "No man with a ruptured intervertebral disc in my opinion would go to a doctor and not make complaint of it." It will be noted that the doctor already had a history of the accident and that the patient then told the doctor that his back hurt him for awhile. Then the doctor just examined the patient's rectum and referred him to an urologist. It is apparent that the doctor's opinion that the patient was not suffering from an injured intervertebral disc, was based upon no substantial facts whatever. All that I have said concerning Dr. Duke's and Dr. Crowder's examination and opinion applies with equal *Page 692 force to the examination and opinion of Dr. Topping. In giving his opinion Dr. Topping seems to have forgotten that the patient told him his back hurt him for awhile after his injury on December 7, 1944, for he says if the patient had a ruptured disc he would surely make complaint of it when he went to a doctor. To me it seems that any person would know if he got his back hurt, but it is unlikely he would know the nature of the injury. Most persons would have to go to a doctor and have the doctor tell them the nature of the injury especially if they had a ruptured disc. However, the doctor bases his opinion upon his own statement that appellant did not tell him he got an injured back in the accident. The doctor's own evidence conclusively shows that this negative statement is untrue.
The opinion of neither of these three doctors was based upon any fact testified to by them, material to the case, nor from any examination by them of the injured back complained of. Nor was either based upon any hypothetical facts whatsoever. They were based on nothing material to the inquiry as to whether the appellant received a ruptured intervertebral disc while working for appellee. On the contrary, each is a mere guess, based wholly on conjecture. Each is wholly nebulous. Each would have the same value, if it were based on an examination of the patient's inner ear, his eyes, his tonsils or his teeth. Surely no court should be deceived by such opinion evidence.
Without exception the law seems to be that "where the evidence does not disclose the existence of sufficient data on which to base a reasonable judgment, the opinion is incompetent." 32 C.J.S., Evidence, § 521, p. 219. Commercial Union AssuranceCo. v. Pacific Gas Electric Co. (1934), 220 Cal. 515, 524,31 P.2d 793. *Page 693
"While absolute certainty is not required of an expert, it is necessary that the facts on which an expert relies for his opinion should afford a reasonably accurate basis for his conclusions. Accordingly, no matter how skilled or experienced the witness may be, he will not be permitted to guess or to state a judgment based on mere conjecture; in other words, the factual foundation for the expert opinion must not be nebulous.
32 C.J.S., Evidence, § 522, p. 220. 20 Am. Jur., Evidence, § 795, p. 667; Stevens v. Illinois Central R.R. Co. (1922), 306 Ill. 370, 137 N.E. 859; Myers v. Shell Petroleum Corp. (1941), 153 Kan. 287, 302, 110 P.2d 810; Kanne v. Metropolitan Life Ins. Co. (1941), 310 Ill. App. 524, 530, 531, 34 N.E.2d 732; O'Donnell v. Snyder (1924), 231 Ill. App.? 581; Ehrhardt v. Connecticut Fire Ins. Co. (1920), 219 Ill. App. 48, 51, 52; Sweeney v. Blue Anchor Beverage Co. (1937), 325 Pa. 216, 222, 189 A. 331, 334; Housman v. Geiman (1934), 62 S.D. 310, 252 N.W. 857; Eggers v. Eggers (1887), 57 Ind. 461, 464.
It has been stated as the law that,
"When the facts upon which the opinion of an expert is based are highly speculative and conjectural, the jury would not be relieved from the necessity of reaching an arbitrary conclusion. The result is such expert testimony cannot be permitted to form the basis of a verdict."
Myers v. Shell Pet. Corp. (1941), 153 Kan. 287, 302, 110 P.2d 810.
In other words such evidence is incompetent and therefore no finding or verdict can lawfully be based thereon.
In a situation like that presented in this case, the law has been well summarized and stated thus:
"Since an administrative finding not supported by evidence is arbitrary and unauthorized, the question whether a finding is supported by evidence *Page 694 is one of law subject to judicial review and independent determination by the court, and this so even though the statute providing for judicial review makes no provision for review of the evidence."
42 Am. Jur., Public Administrative Law, § 287, p. 644; Todd v. Furniture Co. (1925), 147 Md. 352, 359, 128 A. 42; Moore v. Clark (1936), 171 Md. 39, 45, 46, 187 A. 887, 107 A.L.R. 924; Harrison v. Central Construction Co. (1919), 135 Md. 170, 180, 108 A. 874, 888.
In Indiana the rule has been well stated thus:
"In the final analysis, the finding of an administrative agency will not be disturbed when it is subjected to the scrutiny of a judicial review, upon the claim that it is not supported by the evidence, unless it is made to appear that the finding does not rest upon a substantial factual foundation. This may be determined from a reexamination of the evidence upon which the administrative agency acted, or by the original reviewing court hearing evidence, depending upon the legislative scheme upon which the agency operates. . . . If, however, it should be made to appear that the evidence upon which the agency acted was devoid of probative value; that the quantum of legitimate evidence was so proportionately meagre as to lead to the conviction that the finding does not rest upon a rational basis; or that the result of the hearing must have been substantially influenced by improper considerations, the order will be set aside, not because incompetent evidence was admitted, but rather because the proof, taken as a whole, does not support the conclusion reached." (My emphasis.)
Warren v. Indiana Telephone Co. (1939), 217 Ind. 93, 118, 26 N.E.2d 399.
It has been held and seems to be the established law in all jurisdictions where the question has been presented that: *Page 695
"Declarations made by one injured, to his attending physician, are admissible in evidence when they relate to the part of the body injured and his symptoms and sufferings, because a physician is necessarily guided to some extent by such information, free from suspicion of being spoken with reference to future litigation, but the statements are not competent if they relate to the cause of the injury."
Peoria Cordage Co. v. Industrial Board (1918), 284 Ill. 90, 119 N.E. 996; L.R.A. 1918E, p. 822, and many cases there cited.
And quoting again from the same case:
"The court, however, is charged with the duty of determining whether there is any competent evidence sufficient to sustain an award, which must rest upon competent and legal evidence and not be based upon mere conjecture, suspicion or surmise."
See also Reck v. Whittlesberger (1914), 181 Mich. 463, 467, 470, 148 N.W. 247; Goelitz Co. v. Industrial Board (1917), 278 Ill. 164, 168, 115 N.E. 855.
In determining this fact this court must determine whether the findings of the Industrial Board rest upon "competent and legal evidence, as tested by the elementary and fundamental principles of judicial inquiry." Goelitz v. Industrial Board, supra, page 168. Savoy Hotel Co. v. Industrial Board (1917), 279 Ill. 329, 334, 116 N.E. 712.
It seems evident to me that the physical examination given to appellant by the three doctors to whom appellee sent him for such examination, cannot form a substantial basis for an opinion as to whether he had or had not an injured back as claimed by him. Any statement he may or may not have made to these doctors concerning how he received the injury was wholly incompetent evidence. The opinion allows what one of *Page 696 the doctors does not remember of appellant stating to him, and what another doctor untruthfully says he did not state to him as a basis for an inference upon which to base an opinion that he did not receive an injury to his back as alleged. In fact the factual foundation for all appellee's expert opinion evidence is wholly nebulous. Apparently it has been carefully planned that way. It therefore is wholly invalid. Since appellant's evidence is competent, clear and conclusive on every material issue, I am compelled, under the rules heretofore stated, to come to a conclusion contrary to that reached by the Industrial Board.
The decision of the Industrial Board should be reversed, and the decision of the Appellate Court [73 N.E.2d 692] should be affirmed with a corrected mandate.
(EMMERT, C.J., concurring.)
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